When Textualism Divides the Texas Court

A defamation case resulting from an apparently bitter divorce caused irreconcilable differences among the members of the Texas Supreme Court last month. The case, Hogan v. Zoanni, turns on the mundane question of what it means to “maintain” an action under the Texas Defamation Mitigation Act—or, more precisely, whether the DMA requires dismissal or abatement of a defamation claim when a plaintiff fails to request a correction or clarification of the defamatory publication from the defendant.

Despite each set of justices aiming to follow the DMA’s plain text, no majority could agree on a correct interpretation. The rare 4-1-3 split led to a plurality decision announcing the court’s judgment, while leaving the state of the law unclear. Hogan provides a unique chance to consider the approaches to statutory interpretation among the current justices and the practical effect of a Texas Supreme Court decision without a controlling majority.